United States v. Balodimas

Citation177 F.2d 485
Decision Date25 October 1949
Docket NumberNo. 9774.,9774.
PartiesUNITED STATES v. BALODIMAS.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Ode L. Rankin, Chicago, Ill., Charles W. Schaub, Chicago, Ill., Oscar E. Bland, H. Kennedy McCook, Washington, D. C., for appellant.

Otto Kerner, Jr., U. S. Atty., William C. Gallagher, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and DUFFY and FINNEGAN, Circuit Judges.

MAJOR, Chief Judge.

In each count of a five-count indictment returned May 5, 1948, it was charged that the defendant "did wilfully and knowingly attempt to defeat and evade a large part of the income tax due and owing by him to the United States of America * * * by filing and causing to be filed with the Collector of Internal Revenue * * * a false and fraudulent income tax return. * * *." Each of the counts was predicated upon Title 26 U.S.C.A. § 145(b) (Internal Revenue Code) and charged the commission of an offense in different years, to wit, 1942, 1943, 1944, 1945 and 1946. The defendant was tried by a jury which found him not guilty on Count 1, covering the calendar year 1942, and Count 5, covering the calendar year 1946. He was found guilty on Count 2, covering the year 1943, Count 3, covering the year 1944, and Count 4, covering the year 1945. On December 7, 1948, a judgment was entered upon the jury's verdict, from which the defendant appeals.

The two principal grounds relied upon for reversal are (1) that the court erred in its refusal to direct a verdict for the defendant at the close of the government's case, or in any event at the close of all the evidence, and (2) that certain of the court's instructions to the jury were prejudicially erroneous.

While a reading of the testimony discloses that the case is close on its facts, we reach the conclusion that the evidence was sufficient to justify the court in sending the case to the jury. At the same time, we are of the view that the court committed prejudicial error in its charge to the jury, which requires reversal for a new trial. Such being the case, we think no good purpose could be served in a narration of the evidence further than necessary to highlight the court's charge subsequently to be considered.

The defendant was the owner of and engaged in the restaurant business at 115 West Jackson Boulevard, Chicago, from which his income was derived during the years named in the indictment. His income tax returns for such years were prepared from and showed the income disclosed by the books and records kept by the defendant. The essential controversy in the case arises from the government's theory that large amounts of income were withheld by the defendant in such a manner as not to be shown upon his books and records from which the returns were made. This theory of the government is disputed by the defendant, who contends that all his income was shown on the books and records and, therefore, included in his returns.

The two main witnesses relied upon by the government were Tula Kokonos and Dianne Rontos, who served the defendant in the capacity of bookkeeper and cashier. The former was employed in this capacity from the beginning of the years in question until March 1944, when she was succeeded by the latter in the same capacity until 1947, when the business of the defendant was closed. Each of these witnesses testified that she was instructed by the defendant to withhold each day certain amounts of cash from the income of the business, together with customers' checks corresponding with the amount of cash withheld, and that such cash and customers' checks were at the end of the day's business placed in a purse. They further testified that the cash thus withheld was not rung up on the cash register. These cashiers kept a cash box which showed the receipts of each day's business as disclosed by the cash register tape. Another person, a bookkeeper, made up a ledger from the cash book, and from the ledger annual statements were made upon which defendant's income tax returns were predicated. The defendant admits that the money was withheld, as testified to by these witnesses, but offered an explanation with considerable support as to why it was withheld and that it was later accounted for, which, if true, would have exonerated him of the offenses charged. The explanation offered by the defendant, however, goes to the merits of the controversy, that is, whether a jury question was presented, and for our present purpose need not be pursued further.

With this brief statement, designed only to show the situation occupied by these two witnesses, we are brought at once to the court's charge on accomplices which the defendant contends is prejudicial in its nature and requires a reversal. With this contention we agree. The charge in this respect is as follows: "The witnesses Tula Kokonos and Dianne Rontos, who have testified in this case, have openly admitted that they are law violators and have openly admitted the part that they had in the commission of crime. They may be termed accomplices in this case. You will scrutinize their testimony very carefully, Ladies and Gentlemen, and before convicting the defendant upon their testimony alone you should be absolutely certain, in your...

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14 cases
  • United States v. Isaacs
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 19 February 1974
    ...due care. In the case at bar, the court defined the duty of the jury and then stated the test which it was to apply. United States v. Balodimas, 7 Cir., 177 F.2d 485, 487, is likewise not applicable. There the court said that the government witnesses were accomplices who had admittedly brok......
  • United States v. Battaglia
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 9 January 1968
    ...92, 57 S.Ct. 79, 81 L. Ed. 58, and Ruvel v. United States, 12 F.2d 264, 265 (7th Cir. 1926). Battaglia relies on United States v. Balodimas, 177 F.2d 485, 487 (7th Cir. 1949), but there the district judge termed two named witnesses as accomplices. Here the jury had already been instructed t......
  • United States v. Zarra, Crim. No. 14225.
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • 31 March 1969
    ...Cir. 1966, 358 F.2d 154, rev'd on other grounds, 1968, 390 U.S. 62, 88 S.Ct. 716, 19 L.Ed.2d 906. Defendant relies on United States v. Balodimas, 7 Cir. 1949, 177 F.2d 485.6 That case is distinguishable in several important respects and is not controlling. First, in Balodimas, an income tax......
  • Henderson v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 27 February 1953
    ...any inference that they had admitted the commission of the offense or that they had been tried and convicted. United States v. Balodimas, 7 Cir., 177 F.2d 485, 487-488. In view of the foregoing, we are of the opinion that there was sufficient prejudice to the rights of the appellant to requ......
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